United States v. Eric M. Mboule

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 20-3225 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

ERIC MARCEL MBOULE, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Central District of Illinois. No. 18-cr-20054 — Colin S. Bruce, Judge. ____________________

ARGUED NOVEMBER 9, 2021 — DECIDED JANUARY 14, 2022 ____________________

Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judges. KANNE, Circuit Judge. Defendant Eric Mboule was charged with conspiracy to commit wire fraud and entered a plea agreement that contained a waiver of the right to appeal. Nonetheless, Mboule has appealed, raising arguments re- garding the district court’s denial of his motion to withdraw his guilty plea and various purported problems with his sen- tence. Because Mboule has not shown that the plea agreement

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should be voided in its entirety, the appellate waiver is appli- cable, and this appeal will be dismissed. I. BACKGROUND Mboule was charged with one count of conspiracy to com- mit wire fraud for working with his co-conspirator, Patrick Guentangue, to defraud the University of Illinois Urbana- Champaign of $265,193.75. In the summer of 2016, an individ- ual purporting to work for Williams Brothers Construction, a contractor of the university, convinced a university employee to transfer that amount to a bank account owned by Guen- tangue. After Guentangue was arrested, he explained to law enforcement that he had set up the account on Mboule’s in- structions and that Mboule told him to expect a wire totaling $265,000. Guentangue received approximately twenty-five percent of the proceeds with the remaining funds being dis- tributed according to Mboule’s instructions. Mboule and Guentangue had conducted similar frauds on several occa- sions prior to this one. After he was charged, Mboule signed a cooperation agree- ment with the government in which he promised to provide complete and truthful information regarding his criminal conduct in exchange for the government informing the court of Mboule’s cooperation in any sentencing hearing. Mboule also agreed to plead guilty pursuant to a plea agreement. In pertinent part, the plea agreement provided that Mboule was entitled to a 2-level reduction in his offense level because, “based upon the facts currently known by the United States,” he had “clearly demonstrated a recognition and affirmative acceptance of personal responsibility.” The plea agreement nonetheless did not “preclude the United

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States from changing its position if new evidence to the con- trary is discovered or if the defendant later demonstrates a lack of acceptance of personal responsibility in the opinion of the United States.” The plea agreement contained the following provisions re- garding Mboule’s cooperation: 18. As a condition of this entire Plea Agreement, the defendant will cooperate fully with law enforce- ment officials as set forth in a cooperation letter at- tached hereto … . All information and testimony given by the defendant must at all times be complete and truthful. This means, for instance, that the de- fendant must neither minimize the defendant’s own actions nor fabricate or exaggerate anyone else’s ac- tions or involvement. The defendant’s status does not hinge upon obtaining a conviction against any- one else; it is dependent solely upon the defendant being truthful about the facts whatever those may be. 19. The defendant agrees that if the defendant vio- lates the above cooperation terms, the United States will be completely released from all of its obligations under this Plea Agreement. The defendant agrees, however, that under such a circumstance the de- fendant will not be allowed to withdraw from any previously accepted guilty plea. Similar to paragraph 19, paragraph 39 provided that if Mboule breached the plea agreement, the government would have “the option to declare the plea agreement null and void” and would be “released from all of its obligations,” but Mboule would “not be allowed to withdraw from any previ- ously accepted guilty plea” in that event.

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Finally, the plea agreement contained an appellate waiver: “[I]n exchange for the United States’ recommendations and/or concessions in this agreement, the defendant waives all rights to appeal and/or collaterally attack the defendant’s conviction and sentence,” including “the manner and/or method the district court uses to determine, impose, an- nounce, and/or record the sentence.” The waiver did not ap- ply to “claim[s] that the defendant received ineffective assis- tance of counsel.” Earlier on the day of his July 31, 2019 change-of-plea hear- ing, Mboule participated in a pre-plea proffer session with an FBI agent. At that session, Mboule broke his promise to pro- vide complete and truthful information to the government. He claimed (1) that he had no idea why his co-conspirator called him to tell him that there was an available account to use, and (2) that the University of Illinois incident was the first time he was involved in moving fraudulently obtained money. The agent showed Mboule his own text messages that contradicted this information, but Mboule stuck to his story. Following the change-of-plea hearing, at which the mag- istrate judge engaged in a colloquy with Mboule about his guilty plea, the magistrate judge entered a report recom- mending that the district court accept Mboule’s plea as know- ing and voluntary. The district judge adopted the report and accepted Mboule’s plea on September 9, 2019. Mboule’s sentence was determined over the course of three hearings. At the initial sentencing hearing, held on Jan- uary 13, 2020, the government stated that it objected to the presentence investigation report’s acceptance-of-responsibil- ity recommendation “based on information that [it] subse- quently learned.” The district court heard testimony from the

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FBI agent that Mboule lied to him during the proffer session, in breach of the cooperation agreement. It also heard testi- mony from a victim of a different wire fraud that Mboule committed during the summer of 2016. Sentencing proceed- ings resumed on September 21, 2020. The district court con- cluded that the evidence from the first sentencing hearing es- tablished that Mboule “violated that portion of his plea agree- ment concerning cooperation in that he engaged in that fraud- ulent activity.” After that hearing, Mboule, represented by a new lawyer, filed a motion to withdraw his guilty plea under Federal Rule of Criminal Procedure 11(d)(2)(B). The motion stated that Mboule’s previous trial counsel failed to inform Mboule that he could “enter[] an open plea of guilty,” leaving Mboule to believe that his only options were to “proceed with trial or plead guilty pursuant to a plea agreement.” The district court denied the motion without holding an evidentiary hearing. In its order, the court observed that Mboule did not express dis- satisfaction with his attorney or a desire to cancel the plea agreement “until immediately after the January 13, 2020, hearing, where [Mboule] first saw the consequences of his lies.” At the third and final sentencing hearing, held on Novem- ber 6, 2020, the district court resolved the remaining sentenc- ing issues and sentenced Mboule to 42 months’ imprison- ment, which was within the guidelines range of 37 to 46 months, as well as 3 years of supervised release, and ordered him to pay restitution in the amount of $265,193.75. The judge rejected the idea that Mboule had been coerced into pleading guilty and stated that Mboule was simply experiencing “buyer’s remorse.”

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At the end of the hearing, the government expressed un- certainty about whether Mboule’s appellate waiver would be effective. When asked whether there was a waiver, the gov- ernment responded: “There is, Your Honor. It’s a little com- plicated because the [c]ourt also found the defendant violated his plea agreement, so I—I believe it’s probably prudent to advise him of appeal rights as if he has not waived them.” The district court then advised Mboule of his right to appeal and stated that “[appellate] waivers are generally enforceable. But if you believe that the waiver itself is not valid, you can pre- sent that theory to the Court of Appeals if you wish.” Mboule now appeals, challenging the district court’s de- nial of his motion to withdraw his guilty plea and its sentenc- ing determination. II. ANALYSIS Before addressing the substance of Mboule’s appeal, we must determine whether he is barred from bringing this ap- peal at all. When a plea agreement contains a waiver of the right to appeal, our review of the appeal is foreclosed if (1) the appeal falls within the scope of the appellate waiver and (2) the waiver is valid. United States v. Alcala, 678 F.3d 574, 577 (7th Cir. 2012). Again, Mboule agreed to “waive[] all rights to appeal and/or collaterally attack [his] conviction and sentence,” in- cluding “the manner and/or method the district court uses to determine, impose, announce, and/or record the sentence.” The waiver’s only exception was for ineffective-assistance-of- counsel claims. Accordingly, Mboule’s challenges to the dis- trict court’s denial of his motion to withdraw his guilty plea and to its sentencing determination fall within the scope of

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the waiver. See United States v. Perillo, 897 F.3d 878, 883 (7th Cir. 2018) (holding that the defendant’s challenges to denial of her motion to withdraw her plea and to restitution order fell within the scope of the appellate waiver, where the de- fendant had agreed to waive her right to appeal her convic- tion and sentence). Turning to the validity of the appellate waiver, we must determine whether Mboule knowingly and voluntarily relin- quished his right to appeal. See Alcala, 678 F.3d at 578. “To de- termine whether the plea was knowing and voluntary, we ask ‘whether, looking at the total circumstances surrounding the plea, the defendant was informed of his or her rights.’” Perillo, 897 F.3d at 883 (quoting United States v. Kelly, 337 F.3d 897, 902 (7th Cir. 2003)). If Mboule did not enter the plea agreement knowingly and voluntarily, the appellate waiver cannot bar his claims. See United States v. Whitlow, 287 F.3d 638, 640 (7th Cir. 2002) (“We have held time and again that a waiver of ap- peal stands or falls with the rest of the bargain.”). Mboule asserts that, “because [he] is challenging the knowingness of his guilty plea, the appeal waiver does not preclude appellate review.” (Appellant’s Br. at 13.) Of course, Mboule must succeed in persuading us that his plea was not knowing before the waiver can be discarded. Mboule argues that he did not knowingly enter the plea agreement because the government did not discuss, at the change-of-plea hear- ing, Mboule’s alleged lies during the proffer session and the consequences that would ensue—namely, that he would be denied the “benefits accruing to him under” the plea agree- ment (id. at 12), including the sentence reduction for ac- ceptance of responsibility. Had he known that the plea agree- ment would be “reduced to a unilateral waiver of rights,” he

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maintains that he would not have “agree[d] to such a losing bargain.” (Id.) Therefore, according to Mboule, the appellate waiver does not bar review of the district court’s decision, and he asks us to remand the case for the district court to hold an evidentiary hearing on his motion to withdraw his guilty plea. We are not persuaded that the plea agreement was not knowing or voluntary. Again, the reason the government went back on its promise to recommend a sentence reduction for acceptance of responsibility was that Mboule lied to the FBI agent during the proffer session, in violation of his prom- ise to cooperate with the government. “At a minimum,” as the district court noted, Mboule “understood that his [coopera- tion] agreement obligated him to tell the truth” between the time when he signed the cooperation agreement and his change-of-plea hearing. And during the change-of-plea hear- ing, Mboule was informed of the possibility that the govern- ment would be “completely released of its obligations under [the plea] agreement” if he “violate[d] the … cooperation terms,” but that he still would not be “permitted to withdraw [his] previously accepted guilty plea.” Even if Mboule had been ignorant of the potential consequences of his lies at the time he entered his guilty plea, “a plea of guilty does not have to be perfectly informed in order to be voluntary.” Evans v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984). Mboule knew he lied to the FBI agent yet still elected to go forward with his guilty plea. Mboule asserts that if he breached the plea agreement, “the remedy would be to declare the entire agreement—in- cluding the appellate waiver—null and void.” (Appellant’s Reply Br. at 1.) But he does not explain why this is the case.

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While Mboule’s breach entitled the government to declare the plea agreement null and void, releasing the government from its obligations, the government did not do so here. Indeed, we have cautioned that Rule 11 motions should not be used “to withdraw based on gamesmanship and strategic hindsight.” United States v. Graf, 827 F.3d 581, 585 (7th Cir. 2016). As the district court found, “it was not until immediately after the January 13, 2020, hearing, where [Mboule] first saw the consequences of his lies, that he decided he did not want to adhere to the promises he made to the government.” That Mboule became aware of these consequences and sought to avoid them by moving to withdraw his guilty plea “do[es] not undermine the voluntary and knowing character of the plea when it was offered and accepted. To the contrary, the filing of such a motion after acceptance of a plea smacks of games- manship.” Graf, 827 F.3d at 586. The district court correctly concluded that “[t]he fact that [Mboule] was caught in these lies does not create a fair and just reason to allow him to with- draw from his duly entered plea.” In other words, Mboule may not, by breaking his own promise, get out of the plea agreement altogether. Moreover, the government’s purported breach does not warrant voiding the entire plea agreement, because “[a]lthough there must generally be a ‘meeting of the minds’ on the essential elements of a plea agreement, a prosecutor is not necessarily bound to recommend a reduction in the sen- tence for acceptance of responsibility.” United States v. Quintero, 618 F.3d 746, 751 (7th Cir. 2010). As in Quintero, where “[the defendant’s] own conduct” in perjuring himself at a co-defendant’s trial, in breach of his plea agreement, led the government to “walk away from its recommendation of a

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sentence reduction,” id. at 751–52, the government here back- tracked on its recommendation for a sentence reduction be- cause Mboule breached the cooperation agreement in the first place by lying to the FBI agent during the proffer session. Mboule splits hairs by focusing on the fact that his lies to the FBI agent technically preceded the formation of the plea agreement. He relies on an out-of-circuit case, United States v. Mosley, 505 F.3d 804 (8th Cir. 2007), in which the court held that the government breached the plea agreement by relying on the defendant’s pre-plea statements to argue that she did not accept responsibility. Id. at 808. He contends that, simi- larly, the government here should not have gone back on its promise to recommend an acceptance-of-responsibility ad- justment based on his pre-plea statements at the proffer ses- sion. Mosley, however, does not support a holding that the plea agreement—and, in turn, the appellate waiver—is void. In Mosley, the defendant sought specific performance of the plea agreement, and the court remanded the case to the dis- trict court for resentencing by a different judge. Id. at 812. “Unless a prosecutor’s transgression is so serious that it enti- tles the defendant to cancel the whole plea agreement, a waiver of appeal must be enforced.” Whitlow, 287 F.3d at 640. No such transgression occurred here, where the government went back on its promise because Mboule failed to keep up his end of the bargain. Finally, there were no problems with Mboule’s plea collo- quy with respect to the appellate waiver. See Alcala, 678 F.3d at 578–79 (“In assessing the knowing and voluntary character of a defendant’s waiver, the court should lend particular cre- dence to the defendant’s representations to the court during his plea colloquy, during which he is obligated to tell the

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truth.”). The magistrate judge reviewed the plea agreement with Mboule on the record, paragraph by paragraph. In com- pliance with Rule 11(b)(1)(N), the magistrate judge asked Mboule whether he understood that he was waiving his rights to appeal and to bring a collateral challenge and whether he agreed that it was in his best interest to do so. Mboule said he did. Because Mboule’s assurances were made under oath at a plea colloquy, we presume they are correct. See United States v. Chapa, 602 F.3d 865, 869 (7th Cir. 2010). III. CONCLUSION In short, Mboule has pointed to no reason that his plea agreement must be voided. Therefore, the appellate waiver remains in place, and his appeal is DISMISSED.